King v. Brooks

• Decision Date: 06 January 1873
• Citation: 72 Pa. 363
• Parties: King <I>et al. versus</I> Brooks <I>et al.</I>
• Court: Pennsylvania Supreme Court

72 Pa. 363

King et al. versus Brooks et al.

Supreme Court of Pennsylvania.

November __, 1872.

January 6, 1873.

November __ 1872.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Fayette county: No. 183, to October and November Term 1872 D. Kaine and A. Howell, for plaintiffs in error.—The power of the court over a judgment ends with term at which judgment is taken: Mathers v. Patterson, 9 Casey 487; Beale v. Comm'th, 1 Casey 11; Comm'th v. Mayloy, 7 P. F. Smith 297; Horner v. Hower, 3 Wright 126; Bredin v. Gilliland, 17 P. F. Smith 37.

D. Downer, for defendants in error.—Error does not lie to an order opening a judgment: Kalbach v. Fisher, 1 Rawle 323; White v. Leeds, 1 P. F. Smith 187.

The opinion of the court was delivered, January 6th 1873, by SHARSWOOD, J.

It is true that no court has power to strike off or vacate a judgment which is regular on its face. But every court has power to open a judgment in order to give the parties a hearing or trial. In the case of judgments by confession or default there is no limit of time to the exercise of this power, but in the case of judgments entered adversely after a hearing or trial it is settled that it must be done before the end of the term at which they are entered: Bredin v. Gilliland, 17 P. F. Smith 37; Catlin v. Robinson, 2 Watts 379; Stephens v. Cowan, 6 Watts 511; Mathers' Ex. v. Patterson, 9 Casey 485; White v. Leeds, 1 P. F. Smith 187; Commonwealth v. Mayloy, 7 Id. 297. Even when the order of the court is to vacate or strike off — if it is apparent on the face of the record to have been for the purpose of a rehearing or retrial, it is in substance an order to open — though it is much better in all cases to employ the proper term. Had the judgment in this case been upon a verdict in favor of the plaintiff he might have had ground to complain that the court had deprived him of a lien which had already attached, which would have been preserved if the judgment had been opened. The court of errors, however, could have corrected the irregularity by an amendment. As however the verdict and judgment were for the defendant and no costs had been taxed, no lien had attached, and no injury had been done to the plaintiff in error in this respect. It is very evident from the record that the power exercised by the court in this instance was within the limit which has been established. It is true that the rule for a new trial was discharged at the...